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Agency workers' Regulations 2010
Issue 34 - February 2010
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At the moment, most agency workers are not protected in the same way as direct employees. This is soon to change...
Background
The consultation period for the Regulations closed on 11 December 2009. It is expected that they will be finalised sometime before the middle of this year and must be implemented in the UK no later than 5 December 2011. The Government has now published the Agency Workers Regulations 2010 to implement the Temporary Agency Workers Directive and these will come into force on 1 October 2011.
This legislation is being implemented in order to ensure that agency workers (also referred to as temporary workers or “temps”) receive the same basic working and employment conditions that would apply to someone recruited as a direct employee.
Issues such as childcare, transport, access to canteen facilities, etc., if offered to a ‘comparable employee’ should be offered to the temp from the beginning of the assignment, unless there is ‘objective justification’ for not doing so. In addition, if any vacancies arise, the temp will have the right to be informed about them.
In the case of redundancy and TUPE, temps must be added to the list of employees, stating in which part of the business they are employed and the type of work they are contracted to do.
Qualifying Period
The right to receive equality in basic terms and conditions will only come into force when a temp has completed 12 weeks’ service in the same role. This 12-week period is only ‘re-set’ if there is at least a 6-week break between assignments or where the temp starts a new assignment of “substantively different work or duties”. The government will be issuing guidance on the definition of “substantive”.
Equality in Basic Terms
In order to check equality of terms and conditions, the temp’s qualifications and experience should be taken into account and checked against those he or she would have received if they had applied for the job directly.
Where the temp is on the same basic terms as a ‘comparable employee’, according to the legislation, the temp will be deemed to be receiving equal treatment.
These basic terms include pay, bonus, commission and holiday pay (although bonuses paid for long service, redundancy pay, company sick pay, maternity, paternity and adoption pay are not included). This will include holiday pay where the company offers enhanced holiday entitlement, although it will be possible to pay in lieu for any holidays above the minimum set by the Working Time Regulations.
In addition, the temp will have a right to paid time off for ante-natal appointments during pregnancy and other health and safety considerations which should be put in place with regard to new and expectant mothers.
Claims at an Employment Tribunal
Although the agency who has supplied the temp will be primarily responsible if there is a breach of the regulations, the agency may be able to defend their position where it can be shown that ‘reasonable steps’ have been taken to obtain the information required from the company contracting the temp. In such a case, the hiring company would be responsible for any breach, or liability may be split between the agency and the hiring company, except where the claim is in relation to childcare, transport or canteen facilities, which will be the sole responsibility of the hiring company.
Where there is a breach of the regulations, a claim for less favourable treatment and a claim of a detriment for asserting their rights under the regulations could be made. If such a case were to be upheld, this could result in an unlimited compensation award.
Exclusions
The legislation specifically excludes those who are genuinely self-employed, those who work through their own limited liability company and those on managed service contracts.
Further Help and Advice for Employers
It would be wise for companies to look at how they use temporary workers in the future. Questions that should be asked are:
- Whether there is a need to use temps for more than 12 weeks?
- Whether the company could employ direct employees for such positions?
- Whether employing temps will be cost-effective, taking into account the agency fees and cost of comparable pay and holiday pay, etc?
Further information in respect of the Agency Workers Regulations will be provided in future editions of this newsletter. In the meantime, further advice can be obtained from your HR Department. For NorthgateArinso clients, please contact the NorthgateArinso HR Advice Line on 0845 299 0243 who will be happy to help with any queries.
Background
The consultation period for the Regulations closed on 11 December 2009. It is expected that they will be finalised sometime before the middle of this year and must be implemented in the UK no later than 5 December 2011. The Government has now published the Agency Workers Regulations 2010 to implement the Temporary Agency Workers Directive and these will come into force on 1 October 2011.
This legislation is being implemented in order to ensure that agency workers (also referred to as temporary workers or “temps”) receive the same basic working and employment conditions that would apply to someone recruited as a direct employee.
Issues such as childcare, transport, access to canteen facilities, etc., if offered to a ‘comparable employee’ should be offered to the temp from the beginning of the assignment, unless there is ‘objective justification’ for not doing so. In addition, if any vacancies arise, the temp will have the right to be informed about them.
In the case of redundancy and TUPE, temps must be added to the list of employees, stating in which part of the business they are employed and the type of work they are contracted to do.
Qualifying Period
The right to receive equality in basic terms and conditions will only come into force when a temp has completed 12 weeks’ service in the same role. This 12-week period is only ‘re-set’ if there is at least a 6-week break between assignments or where the temp starts a new assignment of “substantively different work or duties”. The government will be issuing guidance on the definition of “substantive”.
Equality in Basic Terms
In order to check equality of terms and conditions, the temp’s qualifications and experience should be taken into account and checked against those he or she would have received if they had applied for the job directly.
Where the temp is on the same basic terms as a ‘comparable employee’, according to the legislation, the temp will be deemed to be receiving equal treatment.
These basic terms include pay, bonus, commission and holiday pay (although bonuses paid for long service, redundancy pay, company sick pay, maternity, paternity and adoption pay are not included). This will include holiday pay where the company offers enhanced holiday entitlement, although it will be possible to pay in lieu for any holidays above the minimum set by the Working Time Regulations.
In addition, the temp will have a right to paid time off for ante-natal appointments during pregnancy and other health and safety considerations which should be put in place with regard to new and expectant mothers.
Claims at an Employment Tribunal
Although the agency who has supplied the temp will be primarily responsible if there is a breach of the regulations, the agency may be able to defend their position where it can be shown that ‘reasonable steps’ have been taken to obtain the information required from the company contracting the temp. In such a case, the hiring company would be responsible for any breach, or liability may be split between the agency and the hiring company, except where the claim is in relation to childcare, transport or canteen facilities, which will be the sole responsibility of the hiring company.
Where there is a breach of the regulations, a claim for less favourable treatment and a claim of a detriment for asserting their rights under the regulations could be made. If such a case were to be upheld, this could result in an unlimited compensation award.
Exclusions
The legislation specifically excludes those who are genuinely self-employed, those who work through their own limited liability company and those on managed service contracts.
Further Help and Advice for Employers
It would be wise for companies to look at how they use temporary workers in the future. Questions that should be asked are:
- Whether there is a need to use temps for more than 12 weeks?
- Whether the company could employ direct employees for such positions?
- Whether employing temps will be cost-effective, taking into account the agency fees and cost of comparable pay and holiday pay, etc?
Further information in respect of the Agency Workers Regulations will be provided in future editions of this newsletter. In the meantime, further advice can be obtained from your HR Department. For NorthgateArinso clients, please contact the NorthgateArinso HR Advice Line on 0845 299 0243 who will be happy to help with any queries.